'Discriminatory Conduct in the ICT Sector: A Legal Framework'
in Gintare Surblyte (ed), Competition on the Internet – MPI Studies on
Intellectual Property and Competition Law, vol 23 (Springer 2014) 63-79
Vertical access disputes are frequent in the ICT sector. Prominent cases before
the European Commission, such as Google, and some regulatory debates – and in
particular discussions about ‘net neutrality’ – are evidence of this. The
purpose of this piece is to identify a legal framework for the assessment of
unilateral discriminatory practices under competition law. Three main approaches
could be considered: (1) a welfare-based approach, based alone on the economic
impact of the practice on welfare; (2) an approach based on the (presumed or
alleged) intent of the firm; and (3) one that seeks to achieve consistency by
examining the substantive standards applying to similar practices. It is shown
that the latter approach is to be preferred, as it seems to be not only sound
from an conomic perspective, but in line with the purpose and logic of
competition law regimes.
click here for publisher's site
'The Commission Investigation into Pay TV Services: Open
Journal of European Competition Law and Practice (2014), 5(8) 531-541
In January 2014, the Commission launched an investigation into pay TV services
in the context of a review of EU copyright rules and following the ruling in
Murphy, where the ECJ held that exclusive territorial licensing agreements may
be restrictive by object. Vice-President Almunia's statement expresses concerns
with restraints limiting the passive sales of pay TV services and with the
‘portability’ of subscriptions across borders. The Commission envisions a form
of cross-border competition between pay TV operators that is not easy to
reconcile with the observable industry dynamics. It is not clear to what extent
the suggested approach considers the ‘economic and legal context’ in which
agreements between studios and broadcasters are concluded.
click here for full text
‘Exclusionary Discrimination under Article 102 TFEU’
Common Market Law Review (2014), 51(1) 141-163
The fact that an integrated dominant firm deals on more
favourable conditions with its affiliated divisions may be abusive within the
meaning of Article 102 TFEU. It is not clear when and why this is the case. It
has sometimes been suggested that, as a rule, dominant firms are not entitled to
favour their own activities over those of rivals. This piece shows that there is
no such thing as a non-discrimination rule applying across the board, which, if
anything, would run counter to the logic and purpose of competition law. A
case-by-case assessment is thus justified. There are compelling reasons to
expand to exclusionary discrimination the principles set out in the Guidance
Paper 2008 for the assessment of refusals to deal and "margin squeeze" abuses.
available from Kluwer [publisher's site]
click here for full text via Kluwer [LSE login
‘State Aid Litigation before EU Courts (2004-2012): A
Statistical Overview’ Journal of European Competition Law and Practice
(2013), 4(6) 469-484
This article considers annulment actions and appeals brought by Member States, recipients, and sub-national entities since 2004.
Where the Member States took part in the proceedings, Commission decisions were annulled more frequently by the General Court.
Annulments were more likely where the ‘private investor test’ was raised as a ground.
On appeal, selectivity-related issues are prominent; first instance judgments were rarely set aside.
click here for full text
'Three Shifts in EU Competition Policy: Towards Standards,
Decentralization, Settlements' Maastricht Journal of European and Comparative
Law (2013), 20(3), 363-385.
EU competition policy has undergone fundamental transformations over the past 20 years. The changes observed are substantive, procedural and institutional in nature. Two decades ago, EU competition policy was enforced centrally by the Commission in a way that is probably best described as traditional administrative law-making. Policy was formulated by means of formal decisions adopted in individual cases and by legislative instruments regulating firm behaviour in detail. Following the adoption of Regulation 1/2003, and as a result of the use of economic analysis, the enforcement landscape is more diverse and decentralized. National competition authorities have emerged as key players in the field (a trend that is also observed in other fields of EU economic regulation, including energy and electronic communications). Individual decisions are now crucially complemented by soft law instruments, the use of which started in the 1990s and which now permeate the whole discipline, and by negotiated procedures.
click here for publisher's site
'The Law on Abuses of Dominance and the System of Judicial
Remedies', Yearbook of European Law (2013) pp.389-431
This article examines the extent to which the imperfect nature of the EU system of judicial remedies can explain the peculiar evolution of the EU law on abuses of dominance. A comprehensive analysis of competition law judgments since the 1960s suggests that the procedural avenue through which a case reaches the General Court and the European Court of Justice has a significant impact on the outcome of individual cases and, over time, on the very substance of Treaty provisions. It is submitted that some of the distinct features of the case law on Article 102 TFEU – lack of consistency, legal uncertainty, judicial restraint – are the consequence of the fact that the scope of the notion of abuse has been defined in the context of annulment actions against Commission decisions, as opposed to preliminary references submitted by national courts in accordance with Article 267 TFEU. This conclusion is tested against the evolution of Article 101 TFEU and Article 2 of the successive Merger Regulations.
full text available here
'Market failures, transaction costs and article 101(1) TFEU
case law' European Law Review 2012, 37(5), 541-562.
EU competition law is increasingly informed by economic analysis. However, the tools of this discipline are rarely ever used systematically for positive purposes. This article gives a unifying picture of art.101(1) TFEU judgments based on familiar economic concepts (market failures and transaction costs). It is submitted that a formalisation of case law based on these concepts has greater explanatory power than the prevailing approaches currently found in textbooks and policy instruments. The article shows, first, that the availability of an efficiency explanation for an agreement is the default starting point followed by EU courts when drawing the line between restrictions of competition by object and by effect. Secondly, it explores how market failures and transaction costs influence the analysis of restrictive effects on competition under art.101(1) TFEU . These insights are equally useful to define the scope of art.101(3) TFEU and the relevance of non-economic considerations.
here for access via Westlaw [ON CAMPUS]
here for access via Westlaw [OFF CAMPUS]
‘De minimis rule in competition law: An overview of EU and
national case law’ (with Inge Govaere), e-Competitions Special Issue,
'Rules of purely sporting interest and EU competition law:
why the Wouters exception is not necessary' Competition Law
International 2012, 8(1), 54-58
Questions the necessity of the approach adopted by the European Court of Justice ruling in Wouters v Algemene Raad van de Nederlandse Orde van Advocaten (C-309/99) in formulating an activity-specific exception to justify sporting rules and arrangements entered into by sports governing bodies that would otherwise have been found to restrict competition by analysing the economics of sporting activities and competition rules. Considers whether it is possible to distinguish between economic and non-economic rules in a sports context.
'On the application of competition law as regulation: elements
for a theory' Yearbook of European Law (2010), 29 261-306
'Judicial review in Article 102' (with Jean-Yves Art) in
Federico Etro and Ioannis Kokkoris (eds), Competition Law and the Enforcement
of Article 102 (OUP 2010)
'The Future of Communications Regulation after Ofcom's Pay-TV
consultation', Utilities Law Review 2010, 18(3), 99-107.
Examines the implications of Ofcom's decision
to allow premium sports channels operated by BSkyB the same
access obligations applied to the "local loop" owned by BT.
Examines when an ex ante intervention is justified in the
communications markets, focusing on the rationale behind the EU
regulatory framework for electronic communications networks and
services and the unintended effects of ex ante intervention.
Considers the legal basis for Ofcom's intervention under the
Communications Act 2003 s.316 and its approach to assessing
anti-competitive conduct. Reviews the definition of "fair and
'Evolving Priorities and Rising standards: Spanish Law on
Abuses of Market Power in the Light of the 2008 Guidance Paper' (with Luis Ortiz
Blanco), in Lorenzo Pace (ed.), European Competition Law: The Impact Of The
Commission’s Guidance On Article 102, Edward Elgar, 2011
'Article 82 EC as a “built-in” remedy in the system of
Intellectual Property: the example of supplementary protection for
pharmaceuticals in Italy', in Intellectual Property, Market Power and the
Public Interest (2008), Peter Lang, pp. 119-142
'The most appropriate tool for a better targeted State aid
policy' (co-author), in Economic Analysis of State Aid Rules - Contributions
and Limits (2007), Lexxion, pp. 29-67
'Selectivity, Economic Advantage, Distortion of
Competition and Effect on Trade' (co-author), in Economic Analysis of
State Aid Rules - Contributions and Limits (2007), Lexxion, pp. 119-155
'Annotation on Case C-171/05 P, Laurent Piau, (with
Denis Waelbroeck)Common Market Law Review (2006), vol. 43, n. 6, pp. 1743-1756
'Recent Developments on the Invocability of WTO Law in
the EC: A Wave of Mutilation', European Foreign Affairs Review
(2006), vol. 11, n.1, pp. 63-86
'The Revival of Antitrust Law in Argentina: Policy or
Politics?', European Competition Law Review (2006) vol. 27, n.6,